Calcutta High Court (Appellete Side)
P. B. Udyog vs The State Of West Bengal And Anr on 28 February, 2023
Form J(1) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRR 67 of 2023
P. B. Udyog, a Proprietorship Unit
Vs.
The State of West Bengal and Anr.
Mr. Prantick Ghosh
Mr. Siddhartha Sarkar
Mr. Prasad Bhattacharya
..for the petitioner
Mr. Biswanath Chatterjee
Mr. Sobham Kumar Pathak
..for the O.P. No.2.
Mr. Sudip Ghosh
Mr. Bitasok Banerjee
...for the State
Item No. 03
Heard & Judgment on: 28.02.2023
Bibek Chaudhuri, J.
Affidavit of service be kept with the record.
An order dated 12th December, 2022 passed by the learned
Additional Chief Judicial Magistrate at Tehatta, Nadia in S.L. No.
2019 of 2022 arising out of Hogalberia Police Station Case No.
294 dated 19th September, 2022 under Sections 407/379/120B
of the Indian Penal Code and Section 7(1)(a)(ii) of the Essential
Commodities Act is assailed by the petitioner in the instant
revision.
It is necessary to record at the outset that a truck loaded
with empty and some filled in gas cylinders were intercepted by
one Sanjoy Kumar Roy, Inspector of Police, DEB KPD,
Krishnanagar PD Nadia on 19th September, 2022. The driver
and another person of the vehicle was arrested on the allegation
that the driver and the said other person were unloading
domestic gas cylinders on the road near Sundalpur Power
Station under Hogalberia Police Station.
On the basis of the said complaint police registered the
above-mentioned case. Subsequently, the owner of the seized
vehicle made an application before the jurisdictional Additional
Chief Judicial Magistrate for return of the vehicle, which was duly
allowed. The petitioner also filed an application praying for
return of the seized cylinders, most of which are empty and
some others are filled in in favour of the petitioner on the
ground that the petitioner is the authorized transporter of the
LPG gas. It is the duty of the petitioner to load the empty gas
cylinders from the distributor to the bottling plant and vice
versa. Since the gas cylinders were seized, huge amount of
money has not been paid to the petitioner /transporter and
secondly the petitioner is getting threat that his contract of
transportation will be cancelled.
The learned advocate for the petitioner has drawn my
attention to the reasons, which prompted the learned Additional
Chief Judicial Magistrate, Tehatta to reject the prayer for return
of the seized LPG gas cylinders. The relevant paragraph runs
thus:-
" Therefore keeping in view above discussion I
am of the opinion that there is an express bar to
exercise the powers under the Criminal Procedure
Code in view of the Provisions of Sections 6A to 6E of
the said Act and this Court at this stage has no
jurisdiction to make order with regard to the release of
the seized essential commodities. The judgment relied
by the Ld. Advocate in para no.15 and 16 also stated
that the application u/s 451 of Cr. P.C. is not
maintainable due to the bar u/s 6E of the Essential
Commodities Act. Hence, considering all the prayer of
the petitioner is rejected at this stage."
Learned P.P.-in-charge takes me to Section 6E of the
Essential Commodities Act, 1955 which runs thus:-
"6E. Bar of jurisdiction in certain cases.- Whenever any
essential commodity is seized in pursuance of an order made
under section 3 in relation thereto, the Collector or, as the case
may be, the State Government concerned under Section 6C shall
have, and, notwithstanding anything to the contrary contained in
any other law for the time being in force, any court, tribunal or
other authority shall not have, jurisdiction to make orders with
regard to the possession, delivery, disposal of distribution of
such property."
Next he draws my attention to Section 6A of the said Act.
"S. 6A. Confiscation of essential commodity.-
[(1)] Where any [essential commodity is seized] in pursuance of
an order made under section 3 in relation thereto, [a report of
such seizure shall, without unreasonable delay, be made to]the
Collector of the district or the Presidency town in which such
[essential commodity is seized] and whether or not a
prosecution is instituted for the contravention of such order, the
Collector [may, if he thinks it expedient so to do, direct the
essential commodity so seized to be produced for inspection
before him, and if he is satisfied] that there has been a
contravention of the order [may order confiscation of -
(a) the essential commodity so seized;
(b) any package, covering or receptacle in which
such essential commodity is found; and
(c) any animal, vehicle, vessel or other conveyance
used in carrying such essential commodity:]
Provided that without prejudice to any action which may be
taken under any other provision of this Act, no food grains or
edible oilseeds in pursuance of an order made under section 3 in
relation thereto from a producer shall, if the seized foodgrains or
edible oilseeds have been produced by him, be confiscated
under this section:
[Provided further that in the case of any animal, vehicle vessel
or other conveyance used for the carriage of goods or
passengers for hire, the owner of such animal, vehicle, vessel or
other conveyance shall be given an option to pay in lieu of its
confiscation, a fine not exceeding the market price at the date of
seizure of the essential commodity sought to be carried by such
animal, vehicle, vessel or other conveyance.]
[(2)] Where the Collector, on receiving a report of seizure or on
inspection of any essential commodity under sub-section (1), is
of the opinion that the essential commodity is subject to speedy
and natural decay or it is otherwise expedient in the public
interest so to do, he may -
(i) order the same to be sold at the controlled price, if
any, fixed for such essential commodity under this
Act or under any other law for the time being in
force; or
(ii) where no such price is fixed, order the same to be
sold by public auction:
Provided that in the case of foodgrains, the Collector may, for its
equitable distribution and availability at fair prices, order the
same to be sold through fair price shops at the price fixed by the
Central Government or by the State Government, as the case
may be, for the retail sale of such foodgrains to the public.
(3) Where any essential commodity is sold, as aforesaid, the
sale proceeds thereof, after deduction of the expenses of any
such sale or auction or other incidental expenses relating
thereto, shall -
(a) where no order of confiscation is ultimately
passed by the Collector.
(b) Where an order passed on appeal under sub-
section (1) of section 6C so requires, or
(c) Where in a prosecution instituted for the
contravention of the order in respect of which
an order of confiscation has been made under
this section, the person concerned is acquitted,
be paid to the owner or the person from whom
it is seized."
It is submitted under instruction by the learned P.P.-in-
charge that no confiscation proceeding under Section 6A has
been initiated in respect of seized gas cylinders. Therefore, bar
of Section 6E does not arise in the instant case. Moreover,
Investigating Officer of the case has submitted a report stating,
inter alia, that the Investigating Authority has no objection if the
seized gas cylinders are returned to the petitioner.
In view of such circumstances, the impugned order dated
12th December, 2022 passed by the learned Additional Chief
Judicial Magistrate at Tehatta is set aside.
The learned Additional Chief Judicial Magistrate, Tehatta is
directed to pass necessary order to return the seized gas
cylinders on receiving proper bond as the learned Magistrate
deems fit within 15 days from the date of communication of this
order.
The instant revision is, thus, disposed of on contest.
The petitioner is at liberty to act on the server copy of this
order.
The report submitted by the Investigating Officer be kept
with the order.
Investigating Officer be released.
(Bibek Chaudhuri, J.)
